Lutz v. Commissioner of Social Security

Filing 8

INFORMATIONAL ORDER for Pro Se Litigants, signed by Magistrate Judge Dennis L. Beck on 12/7/12. (Gonzalez, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

RONALD LEE LUTZ,

12

Plaintiff,

13
14

v.
Commissioner of Social
Security,

15
Defendant.
16

)
)
)
)
)
)
)
)
)
)
)

1:12cv01979 DLB

INFORMATIONAL ORDER
FOR PRO SE LITIGANTS

17
Plaintiff is proceeding pro se in an action seeking judicial
18
review of an administrative decision of the Commissioner of
19
Social Security that denied, in whole or in part, plaintiff’s
20
claim for benefits under the Social Security Act.
21
This order provides the following helpful information, and
22
basically serves as a step-by-step guide, for pro se litigants.
23
It is strongly suggested that plaintiff read and re-read this
24
order and keep it readily available for future reference.
25
///
26
//
27
/
28
1

1
2

I.

Service of the Complaint
As is outlined in the Scheduling Order issued in this

3

case, except when other provisions are made pursuant to an

4

application to proceed in forma pauperis, plaintiff shall serve a

5

copy of the (1) summons, (2) complaint, (3) notice of

6

availability of a Magistrate Judge and the form of consent/

7

decline to jurisdiction of United States Magistrate Judge (See

8

Local Rule 73-305(a)), and (4) the Scheduling Order, within

9

twenty (20) days of plaintiff filing the complaint.

10

If plaintiff is proceeding in forma pauperis, the

11

United States Marshal usually serves the complaint.

12

plaintiff is not proceeding in forma pauperis, then plaintiff or

13

legal counsel is responsible for service and then filing a proof

14

of service without delay.

15

However, if

See Local Rule 4-210.

Lawsuits for review of administrative decisions made by

16

the Commissioner of Social Security are prosecuted against the

17

Commissioner of Social Security.

18

provides, in substance, that to serve the Commissioner in his

19

official capacity, the party must serve (1) the United States,

20

and (2) the Commissioner.

Fed.R.Civ.P. 4(i)(2) and (3)

21

To serve the United States, a party must:

22

(1)

deliver a copy of the summons and complaint to the

23

United States Attorney for the district where the action is

24

brought, or to an Assistant United States Attorney or clerical

25

employee whom the United States Attorney designates in a writing

26

filed with the Court; or, send a copy of the summons and

27

complaint, by certified mail only, to the Civil Process Clerk at

28

the United States Attorney’s Office; and,
2

1

(2)

send a copy of the summons and complaint, by

2

certified mail only, to the Attorney General of the United States

3

in Washington, D.C.; and,

4

(3)

send a copy of the summons and complaint, by

5

certified mail only, to the Commissioner (the officer of the

6

United States whose order is challenged by the lawsuit) in San

7

Francisco, CA.

8
9
10

Fed.R.Civ.P. 4(i)(1)-(3).

Initial service of process is thus sufficient if
plaintiff serves, by certified mail only, copies of the summons
and complaint on:

11

Office of the United States Attorney
Civil Process Clerk
2500 Tulare Street, Suite 4401
Fresno, CA 93721

12
13

Office of the Attorney General of the United States
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001

14
15

Office of the General Counsel
Social Security Administration
333 Market Street, Suite 1500
San Francisco, CA 94105

16
17
18

after which a proof of service must be filed with the Court

19

without delay pursuant to Local Rule 4-210.

20

proceeding in forma pauperis, the United States Marshal generally

21

completes the proof of service and files it with the Court;

22

however, if plaintiff is not proceeding in forma pauperis, it is

23

plaintiff’s duty to promptly file a proof of service with the

24

Court.

25
26
27
28
3

If plaintiff is

1

II.

Attempt at Informal Resolution of the Case

2

Pursuant to the Scheduling Order, within one hundred

3

twenty (120) days after service of the complaint, defendant is

4

required to serve a copy of the administrative record on

5

plaintiff and also file the administrative record with the Court,

6

which serves as the answer to the complaint in this proceeding.

7

Once the administrative record has been filed, the

8

parties must try to resolve the case informally.

9

process, the parties must exchange informal briefs in the form of

In this

10

letters about the case to see if they can agree that the case

11

should be sent back, or “remanded,” to the Social Security

12

Administration for a further hearing by an administrative law

13

judge.

14

In the letter brief, plaintiff must briefly set forth

15

(1) the issues in the case, (2) the reasons why plaintiff thinks

16

that plaintiff is entitled to Social Security benefits, and (3)

17

why the decision to deny benefits should be remanded.

18

The letter brief must be marked “Confidential Letter

19

Brief”, should not be filed with the Court, and must be served on

20

defendant within thirty (30) days from the date defendant served

21

plaintiff with the administrative record, by mailing copies to

22

all the attorneys listed on the court docket as representing

23

defendant, Commissioner of Social Security, at the addresses

24

noted on the court docket.

25

The name of the attorney or attorneys representing

26

defendant are added to the court docket at the time the Court

27

receives defendant’s response to the complaint which, again,

28

usually consists of the administrative record.
4

Sometimes the

1

court docket lists not only an attorney at the office of the

2

General Counsel of the Social Security Administration in San

3

Francisco, CA, but also an attorney at the United States

4

Attorney’s Office in Fresno, CA; in these particular cases, it

5

will then be necessary for plaintiff to mail copies of the

6

confidential letter brief to more than one attorney for

7

defendant.

8
9
10
11

Defendant’s confidential letter brief must be served on
plaintiff no later than thirty-five (35) days after defendant is
served with plaintiff’s confidential letter brief.
If the parties agree to a remand, then the case will go

12

back to the Social Security Administration before any formal

13

briefs are filed with the Court, and without the Court ever

14

considering the merits of the case.

15

remand the case must be set forth in writing in a document titled

16

“Stipulation and Order,” which must be signed and filed with the

17

Court no later than fifteen (15) days after defendant served its

18

confidential letter brief on plaintiff.

19

83-143(a)(1) & (b).

The parties’ agreement to

See Local Rule

20

The informal letter briefs exchanged by the parties are

21

confidential in the sense that they are not filed with the Court.

22

If the parties are unable to agree to a remand, the letters are

23

not part of the case file and, thus, are not before the Court if

24

and when the Court finally considers the case on the merits.

25
26

III. Briefs
If, after exchanging confidential letter briefs, the

27

parties are unable to agree to a remand of the case, then the

28

parties must file formal briefs with the Court as directed in the
5

1

Scheduling Order.

2

with the Court that the Court will consider the merits of the

3

case and make a decision.

4

A.

It is only after the formal briefs are filed

Plaintiff’s Opening Brief

5

Plaintiff’s opening brief must be filed and served

6

no later than thirty (30) days from the date defendant’s informal

7

letter brief was served on plaintiff.

8

copy of the opening brief on all the attorneys listed for

9

defendant on the court docket of the case at the addresses noted

10
11

Plaintiff must serve a

on the court docket.
Plaintiff must also file the original opening

12

brief, together with a copy, with the Court, by either personal

13

delivery or via U.S. mail to:

14
15
16
17
18

Office of the Clerk
United States District Court
Eastern District of California
2500 Tulare Street, Suite 1501
Fresno, CA 93721
Plaintiff’s opening brief must contain the following:
(1)

a plain description of plaintiff’s alleged

19

physical or emotional impairments, when plaintiff contends they

20

became disabling, and how they disabled plaintiff from work;

21
22
23
24
25

(2)

a summary of the administrative proceedings

before the Social Security Administration;
(3)

a summary of the relevant testimony at the

administrative hearing;
(4)

a summary of all relevant medical evidence,

26

including an explanation of the significance of clinical and

27

laboratory findings, and the purpose and effect of prescribed

28

medication and therapy;
6

1

(5)

a recitation of the Social Security

2

Administration’s findings and conclusions relevant to plaintiff’s

3

claims;

4

(6)

a short, separate statement of each of

5

plaintiff’s legal claims stated in terms of the insufficiency of

6

the evidence to support a particular finding of fact or reliance

7

on an erroneous legal standard; and,

8
9

(7)

argument separately addressing each claimed

error.

10

All references to the administrative record and

11

all assertions of fact must be accompanied by citations to the

12

administrative record.

13

error must be supported by citation to legal authority and

14

explanation of the application of such authority to the facts of

15

the particular case.

16

with these requirements will be stricken.

17

stricken becomes null and void and is not considered by the Court

18

for any purpose.

19

Argument in support of each claim of

Briefs that do not substantially comply
A document that is

Plaintiff is further advised that failure to

20

timely file an opening brief will result in dismissal of the

21

action.

22

B.

Defendant’s Brief

23

Pursuant to the Scheduling Order, defendant’s

24

responsive brief is due filed and served on plaintiff within

25

thirty (30) days from the date of service of plaintiff’s opening

26

brief on defendant.

27
28
7

1

C.

2

Plaintiff’s Reply Brief
Plaintiff may file a reply brief, but is not

3

required to do so, within fifteen (15) days from the date

4

defendant served its responsive brief on plaintiff.

5

must serve a copy of the reply brief on defendant by serving the

6

United States Attorney for the Eastern District of California at

7

the address in Fresno, CA, noted above.

8

the original reply brief, together with a copy, with the Court at

9

the Court’s address in Fresno, CA, noted above.

10
11
12

Plaintiff

Plaintiff must also file

Plaintiff’s reply brief should respond to the
arguments made in defendant’s responsive brief.
IV.

13

Motion to Dismiss
In some cases, instead of serving and filing an

14

administrative record, defendant may file a motion to dismiss the

15

case pursuant to Fed.R.Civ.P. 12., within one hundred twenty

16

(120) days from the date defendant is served with plaintiff’s

17

complaint.

18

Plaintiff may oppose a motion to dismiss by filing and

19

serving opposition to the motion within fourteen (14) days from

20

the date the motion to dismiss was served on plaintiff, and

21

should be titled “Opposition to Defendant’s Motion to Dismiss.”

22

See Local Rule 78-230(c).

23

The Court will consider a motion to dismiss only after

24

receiving opposition from plaintiff, or after the time for filing

25

opposition has passed.

26

case, the Court may either (1) deny the motion and proceed with

27

the case, ordering the parties to proceed to file the

28

administrative record, attempt informal resolution, and file

In ruling on a motion to dismiss the

8

1

briefs; or, (2) grant the motion to dismiss, and dismiss all or

2

part of the case.

3

V.

4

The Court’s Decision on the Merits
The Court will consider the merits of the case only

5

after all briefs have been filed, and may enter a judgment

6

affirming, modifying, or reversing the determination of the

7

Social Security Administration.

8

the case to the Social Security Administration for a further

9

hearing.

10

VI.

11

The Court may or may not remand

Summary of Deadline Calculations

See Section
I. above

Service

due 20 days after filing complaint

See Section
II. above

Administrative
Record

due 120 days after service

See Section
III. A. above

Plaintiff’s
Opening Brief

due 95 days after administrative
record lodged with court

Defendant’s Brief

16

See Section
III. B. above

due 30 days after plaintiff’s
opening brief filed

17

See Section
III. C. above

Plaintiff’s Reply
Brief - optional

due 15 days after defendant’s brief
filed

12
13
14
15

18
19

VII. Rules for Litigating the Action

20

Plaintiff is informed of the following:

21

A.

In litigating this action, the parties must comply

22

with the Federal Rules of Civil Procedure (Fed.R.Civ.P.), and the

23

Local Rules of the United States District Court, Eastern District

24

of California (“Local Rules”).

25

obtained in the Clerk’s Office at no charge.

A copy of the Local Rules may be

26
27
28
9

1

Local Rule 8-206 is a special rule for social

2

security actions.

3

that complaints shall contain the last four digits of plaintiff’s

4

social security number only, i.e., XXX-XX-1234, and that

5

plaintiff shall privately disclose to defendant, within five (5)

6

days after a request is made to plaintiff, the full social

7

security number of plaintiff.

8
9

Specifically (a)(2) and (3) generally states

Therefore, plaintiff shall refrain from disclosing
the entire social security number on any filings.

10

FAILURE TO COMPLY WITH THE LOCAL RULES, FEDERAL

11

RULES, OR A COURT ORDER, INCLUDING THIS ORDER, WILL BE GROUNDS

12

FOR DISMISSAL OR OTHER APPROPRIATE SANCTIONS.

13

11-110; Fed.R.Civ.P. 41(b).

14

B.

See Local Rule

Documents intended to be filed with the Court must

15

be mailed to the Clerk of the Court in Fresno, CA, at the address

16

noted above.

17

inappropriately mailed directly to a judge's chambers will be

18

stricken from the record.

19

must be styled as a motion, not a letter.

20

C.

See Local Rule 5-134(a).

All documents

A document requesting a court order
See Fed.R.Civ.P. 7.

Each document submitted for filing must include

21

the original signature of the filing party or parties.

22

Rule 7-131; Fed.R.Civ.P. 11(a).

23

the required signature(s) will be stricken.

24

document must be separately stapled.

25

document is stapled behind another document, it will not be filed

26

and will not enter the court docket.

27
28

D.

Local

All documents submitted without
Each separate

See Local Rule 7-130.

If a

All documents filed with the Court must be

submitted with an additional legible copy to be conformed for the
10

1

Court's use.

2

without an extra copy for the Court's use will be stricken.

3

the filing party wishes the Court to return a file-stamped copy,

4

an additional copy must be provided for that purpose (i.e., an

5

original and two copies, one for the Court's use and one to be

6

returned to the filing party), together with a self-addressed,

7

stamped envelope.

8

service for a party, even for an indigent plaintiff proceeding in

9

forma pauperis.

See Local Rule 5-133(d)(2).

A document submitted
If

The Court cannot provide copy or mailing

Copies of documents from the Court’s file may be

10

obtained in the Clerk’s Office at the cost of fifty ($.50) cents

11

per page.

12

E.

After any defendant has appeared in an action by

13

filing a pleading responsive to the complaint (i.e., an answer or

14

a motion to dismiss), all documents filed with the Court must

15

include a proof of service stating that a copy of the document

16

was served on the opposing party.

17

F.R.Civ.P. 5; Local Rule 5-135.

18

required proof of service will be stricken.

19

represented by counsel, service on the party's attorney of record

20

constitutes effective service.

21

F.

See 28 U.S.C. § 1746;
A document submitted without the
Where a party is

A pro se party has an affirmative duty to keep the

22

Court and opposing parties apprised of a current address.

23

plaintiff moves and fails to file a notice of change of address,

24

service of court orders at plaintiff's prior address shall

25

constitute effective notice.

26

directed to plaintiff is returned by the United States Postal

27

Service as undeliverable, the Court will not attempt to re-mail

28

it.

See Local Rule 83-182(f).

If

If mail

If plaintiff’s address is not updated, in writing, within
11

1

sixty (60) days of mail being returned, the action will be

2

dismissed for failure to prosecute.

See Local Rule 83-183(b).

3
4
5

IT IS SO ORDERED.
Dated:
9b0hie

December 7, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12